Ming and Dao - [2018] FamCA 430

FAMILY COURT OF AUSTRALIA

MING & DAO

[2018] FamCA 430

FAMILY LAW – SPOUSAL MAINTENANCE – Interim – Lump sum – Periodic.
FAMILY LAW – INJUNCTIONS – Interim.

Family Law Act 1975 (Cth)

Redman and Redman (1987) FLC 91-805

APPLICANT:

Mr Ming

RESPONDENT:

Ms Dao

FILE NUMBER:

SYC

8463

2017

DATE DELIVERED:

14 June 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

12 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Kearney, SC

SOLICITOR FOR THE APPLICANT:

Pigdon Norgate Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Batey

SOLICITOR FOR THE RESPONDENT:

Juris Cor Legal

Orders

Pending further order:

Within 14 days, by way of lump sum spousal maintenance, the wife pay to the husband the sum of $100,000.
Pending further order, the wife pay to the husband, by way of spousal maintenance, the sum of $1,944 per week, with the first payment to be made within seven (7) days of these orders and weekly thereafter.
The spousal maintenance payable to the husband pursuant to order 2 hereof to the husband is to be varied each year on the 1^st of July, commencing 1 July 2019 to such sum as shall be determined by multiplying the spousal maintenance payable on the review date by a fraction in N/B where “B” is the Consumer Price Index for Sydney (All Groups) published by the Australian Bureau of Statistics (CPI) in respect of the quarter ended 12 months prior to the review date, and “N” is the CPI with respect to the quarter year ending on the day immediately preceding the review date.
Further, by way of spousal maintenance, the wife pay regular instalments on the lease of the motor vehicle driven by the husband.
Pending further order, the wife be and hereby is restrained from by herself, her servants and/or agents doing and/or causing or permitting to be done, any of the following:
(i)Alienating or further encumbering any of the assets, income or undertaking of any of the entities save for operating the businesses in the usual course;
(ii)Alienating or further encumbering any of the shares in any of the entities;
(iii)Issuing any new shares or otherwise altering the shareholding (including any rights and entitlements attaching to or any other incident of the same) in any of the entities;
(iv)Removing, replacing or appointing any director or other officeholder of any of the entities;
(v)Removing, replacing or appointing any appointor, trustee beneficiary of any Trust; and
(vi)Exercising any power of appointment or distributing of capital or income, or any power of revocation, variation or re-settlement in respect of any Trust.
The wife forthwith notify the husband in writing upon the receipt by her of any notice of and/or upon otherwise becoming aware of any intention by any other person or entity to take any action so as to permit or cause any of the matters subject to paragraphs 5.1 to 5.6 inclusive above to occur.
Pending further order, the wife be and hereby is restrained from…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ming and Dao

Details

AGLC: Ming and Dao [2018] FamCA 430
Case: [2018] FamCA 430
Decision Date: 14 June 2018

CaseChat Overview and Summary

In the matter of Ming and Dao, Watts J made orders concerning spousal maintenance and the preservation of assets. The dispute involved an application for spousal maintenance by the husband, and the court was required to determine the appropriate quantum and duration of such maintenance, as well as to make orders to protect the parties' assets pending further proceedings.

The court ordered the wife to pay the husband a lump sum of $100,000 by way of spousal maintenance within 14 days. Additionally, the wife was ordered to pay the husband $1,944 per week in spousal maintenance, commencing within seven days and continuing weekly thereafter, pending further order. This weekly amount is to be varied annually on 1 July, commencing 1 July 2019, by reference to the Consumer Price Index for Sydney (All Groups). The wife was also ordered to pay regular instalments on the lease of the motor vehicle driven by the husband.

Furthermore, extensive orders were made to restrain both parties from dealing with various assets and entities. The wife was specifically restrained from alienating or encumbering assets, shares, or undertaking of certain entities, and from altering shareholdings or appointing/removing directors or trustees of trusts, except in the usual course of business. Both parties were restrained from operating on a specific Commonwealth Bank account other than for scheduled loan repayments and building insurance payments. The wife was also restrained from increasing secured liabilities on specified properties and from dealing with her interests in those properties. Both parties were prohibited from engaging in conduct, including on social media, that denigrates the other party or their family. The wife was granted liberty to apply to vary the asset preservation orders on 14 days' notice if the husband unreasonably refused consent to a proposed transaction. The matter was referred back to the List Clerk to schedule the wife's application for exclusive occupation and other orders.

Orders

Orders of the court

Pending further order:

Within 14 days, by way of lump sum spousal maintenance, the wife pay to the husband the sum of $100,000.

Pending further order, the wife pay to the husband, by way of spousal maintenance, the sum of $1,944 per week, with the first payment to be made within seven (7) days of these orders and weekly thereafter.

The spousal maintenance payable to the husband pursuant to order 2 hereof to the husband is to be varied each year on the 1st of July, commencing 1 July 2019 to such sum as shall be determined by multiplying the spousal maintenance payable on the review date by a fraction in N/B where “B” is the Consumer Price Index for Sydney (All Groups) published by the Australian Bureau of Statistics (CPI) in respect of the quarter ended 12 months prior to the review date, and “N” is the CPI with respect to the quarter year ending on the day immediately preceding the review date.

Further, by way of spousal maintenance, the wife pay regular instalments on the lease of the motor vehicle driven by the husband.

Pending further order, the wife be and hereby is restrained from by herself, her servants and/or agents doing and/or causing or permitting to be done, any of the following:

(i) Alienating or further encumbering any of the assets, income or undertaking of any of the entities save for operating the businesses in the usual course;

(ii) Alienating or further encumbering any of the shares in any of the entities;

(iii) Issuing any new shares or otherwise altering the shareholding (including any rights and entitlements attaching to or any other incident of the same) in any of the entities;

(iv) Removing, replacing or appointing any director or other officeholder of any of the entities;

(v) Removing, replacing or appointing any appointor, trustee beneficiary of any Trust; and

(vi) Exercising any power of appointment or distributing of capital or income, or any power of revocation, variation or re-settlement in respect of any Trust.

The wife forthwith notify the husband in writing upon the receipt by her of any notice of and/or upon otherwise becoming aware of any intention by any other person or entity to take any action so as to permit or cause any of the matters subject to paragraphs 5.1 to 5.6 inclusive above to occur.

Pending further order, the wife be and hereby is restrained from by herself, her servants and/or agents doing and/or causing or permitting:

(i) Any increase in any liability secured by way of any existing encumbrance upon each of the Suburb B property, the Suburb C property and the D Street property, including by the increase of the amount owed on any present facility;

(ii) Any increase in the liability of any of the entities beyond the current level of any facility presently available; and

(iii) Any dealing with respect to her interests in each of the Suburb B property, the Suburb C property and the D Street property.

Pending further order, each of the husband and the wife be and hereby is restrained from operating in any way upon Commonwealth Bank account number …58 other than for the purpose of the payment of scheduled repayments for loan accounts to the Commonwealth Bank account in the parties’ names and for the payment of building insurance in respect of the Suburb B property, the Suburb C property and the D Street property.

Pending further order, the wife be and hereby is restrained from dealing with any property or entities of the parties in which the husband is a director and/or shareholder or in which he has an interest other than in the ordinary course of business without the prior written consent of the husband, which consent not be unreasonably withheld.

10.

The parties be restrained from doing any act or thing, or causing or permitting any other person to do any act or thing, including writing, posting or sharing images on social media, that has intention or effect the denigration of the other party or that party’s family.

11.

The wife have liberty to approach the court on 14 days’ notice by way of filing an application in a case to vary orders 5, 7 and 9 with a supporting affidavit setting out why it is she needs to be able to carry out a certain transaction which the orders prohibit in circumstances where she has already asked the husband for permission and he has refused to give it.

12.

I note pursuant to [64] of the Reasons, the matter is to be referred back to the List Clerk who shall list he wife’s application for exclusive occupation and other orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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